A federal judge’s civil contempt ruling threatens a free and independent press

Photo (cc) 2012 by Adam Katz

A federal judge reminded us all this week that journalists have no First Amendment right to protect their confidential sources. What is disturbing about the case at issue, though, is that it involves a civil case brought against the government rather than an alleged crime.

According to Alanna Durkin Richer and Eric Tucker of The Associated Press, investigative reporter Catherine Herridge must pay a fine of $800 a day, although that fine will not be imposed until she has an opportunity to appeal. The case involves a Chinese American scientist who was investigated by the FBI but not charged with any wrongdoing. That scientist, Yanping Chen, is suing the government and demanding to know who leaked damaging information about her to Herridge.

Herridge reported a series of articles about Chen for Fox News in 2017 and was recently laid off by CBS News.

Journalists in 49 states enjoy some level of protection in being required to give up their confidential sources. The two exceptions are Wyoming and the federal system. But even federal judges generally weigh the importance of the information sought against the chilling effect created by forcing reporters to break promises they made to their sources. A breach of national security resulting in criminal charges, for instance, would be considered a much higher priority than Chen’s civil lawsuit under the Privacy Act

Nevertheless, U.S. District Judge Christopher Cooper, according to the AP account, ruled that though he “recognizes the paramount importance of a free press in our society,” the legal system “also has its own role to play in upholding the law and safeguarding judicial authority.”

Earlier this year, the U.S. House passed a bill on a bipartisan basis that would create a strong federal shield law called the PRESS Act. The bill awaits an uncertain fate in the Senate, according to Gabe Rottman, writing for the Reporters Committee for Freedom of the Press.

In any case, it strikes me that demanding that a reporter give up her confidential sources so a plaintiff can advance her breach-of-privacy lawsuit against the government is an abuse of the idea that the press ought to be free and independent, even if it doesn’t specifically violate the First Amendment.

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